Personal injury law is all about torts. Broadly defined, a tort is a harmful act (or failure to act) for which the law provides a remedy. There are many different kinds of torts. Physically injuring someone is a tort; so is damaging a person's property or character, or wrongly denying someone his or her liberty. The basic principle of tort law is that injured persons should be compensated by those responsible for their injuries. Thus, a victim of a tort has the right to sue the tortfeasor (the person committing the tort) for damages. Though often confused, torts and crimes are two separate legal entities. Torts are civil wrongs against an individual exposing the tortfeasor to liability. Crimes are wrongs against society or the state and are punishable by incarceration or fines. Some acts, however, can be both a tort and a crime. For example, someone who used force to cause bodily injury has committed a tort known as battery and is liable to the victim for damages. Battery is also a first degree misdemeanor under Florida law and punishable by up to one year in prison. Thus, a person could be prosecuted and convicted of battery, and later face a civil lawsuit brought by the victim. However, because personal injury law is wide and varied, there are many different applications: The law recognizes three general types of torts:
Each of these torts is unique and has its own requirements for recovery. For example, if a person is injured by a commercial product, he or she may sue the manufacturer under a theory of negligence or strict liability. Suing for negligence requires that the plaintiff show that the defendant failed to use adequate care in making the product. Suing based on strict liability requires that the plaintiff show, among other things, that the product was "unreasonably dangerous." Which theory a plaintiff uses depends on the facts of his or her particular case. (For more information on products liability see the Personal Injury Law: Products Liability chapter.) Intentional Torts As the name implies, intentional torts are those torts for which the defendant intends the consequences of an act. Battery is an example of an intentional tort; so is assault (threatening someone with physical violence), false imprisonment or other invalid uses of legal authority, invasion of privacy (e.g., unauthorized use of a person's name or picture for commercial purposes), and trespass. Defamation is also considered an intentional tort, either in print, on television or radio (libel), or in spoken form (slander). To proceed in a lawsuit for damages caused by an intentional tort, a plaintiff must show that the defendant committed the tort, intended the consequences or knew with substantial certainty what consequences would result, and that the defendant's act was a substantial factor in the resulting harm or injury. In some cases, however, there are defenses to intentional torts which excuse the defendant from liability. For example, someone may commit battery in self-defense. Under Florida law, a person is justified in using force to defend him or herself, so long as the force is reasonably necessary. Similarly, the truth of a statement may be a complete defense to a defamation action. Unlike negligence, a plaintiff suing for an intentional tort is not usually required to show actual damages in order to proceed with a lawsuit. In the case of defamation, for example, the resulting emotional distress and mental anguish are considered sufficient damages to justify a lawsuit (however, the damage award may be nominal without proof of a quantifiable injury). Plaintiffs who do suffer quantifiable injury are entitled to compensatory damages (damages which compensate the plaintiff for injury to person or property) and may receive punitive damages (damages aimed at punishing the defendant and deterring future similar action) if the tort was willfully committed or particularly malicious. Negligence The majority of personal injury lawsuits in Florida are brought under a theory of negligence. Negligence has to do with how careful a person was when he or she caused an injury, and how careful, according to the law, he or she should have been. There are four requirements to proving negligence. A plaintiff must show (1) the defendant had a duty to conform to a certain standard of conduct to protect others from unreasonable risk; (2) the defendant breached that duty; (3) the defendant's breach was the proximate cause of the plaintiff's injury; and (4) the plaintiff suffered an injury. In general, the law imposes a duty on everyone to behave at least as carefully as a reasonable, ordinary, prudent person in a similar situation. This is known as the reasonable person standard. A defendant's actions must fall short of the reasonable person standard in order for the defendant to be found negligent. If a court determines that the defendant acted reasonably, even though his or her actions caused injury to another, the defendant is not negligent and not liable for damages. Strict Liability If a plaintiff sues under the theory of strict liability, he or she contends that the defendant is liable regardless of fault. The issue of how careful a defendant was or should have been is irrelevant. If the defendant's activity was the proximate cause of the plaintiff's injury, the defendant is liable. Strict liability applies only in a limited number of areas. For example, owners of wild or dangerous animals are strictly liable for any injuries their animals may cause (owners of domestic animals -- dogs and cats -- are liable only if negligent). Also, anyone engaged in ultrahazardous or abnormally dangerous activities is strictly liable for injuries. Examples would include demolishing buildings, crop dusting, manufacturing explosives, blasting, and fumigating. Finally, and most important for consumers, manufacturers may be strictly liable for injuries caused by their products. (See the Personal Injury Law: Products Liability chapter for more information.) To prove a case based on strict liability, four elements must be established. A plaintiff must show (1) the defendant had an absolute duty to make the activity or product safe; (2) the defendant breached that duty; (3) the breach of the duty was the proximate cause of the plaintiff's injury; and (4) the plaintiff suffered an injury. Because the issue of fault is not relevant to a strict liability case, the most crucial element of the above four is that of causation. |
Personal Injury |